State prosecutor responds to convicted murderer Breest’s request for new trial

Robert Breest, on trial for the murder of Manchester teen Susie Randall in 1973, Ismokes a cigarette during a jury view at the bridge on Interstate 93 in Concord where Breest was accused of having dropped Randallâs body onto the frozen Merrimack River.

A bailiff handcuffs Robert Breest following his request for DNA testing of the material under the nails of the victim in September 2000. Breest is convicted of killing Susan Randall in 1971. In 1973 he was sentenced to life in prison, with the first possibility of parole in 2013.

The discovery of a third person’s DNA beneath the fingernails of a woman killed 42 years ago doesn’t discredit the theory that Robert Breest acted alone in the murder, according to state prosecutors.

Breest, convicted in 1973 of killing 18-year-old Susan Randall, has hinged his recent request for a new trial on that evidence, which his lawyers say contradicts the case presented against him at trial. But Senior Assistant Attorney General Jeffery Strelzin said the DNA Breest claims is not his could have been deposited beneath the victim’s fingernails days or even a week before she was murdered and her body was thrown onto the frozen Merrimack River.

“DNA under a person’s fingernails does not necessarily indicate foul play,” Strelzin wrote in a motion to dismiss Breest’s request. “It could come from minor contact with another person, it could come from a consensual nonviolent encounter, or it could be transferred DNA, which was already on the killer’s hand or even another object.”

The argument is one of several Strelzin makes in his motion, filed in response to a 109-page request for a new trial made last month at Merrimack County Superior Court by several lawyers working on behalf of Breest.

The latest filings in the 40-year-old case bring only its latest resuscitation. Breest has received four rounds of DNA testing since 2000, all of which failed to exonerate him.

The latest is different, according to his lawyers, because it shows three people’s DNA under Randall’s fingernails: her own, a man who definitely was not Breest and a man who may or may not have been Breest.

The lawyers argue that the evidence undermines the theory presented to the jury that convicted Breest, but in his motion, Strelzin argues otherwise. He said all the evidence “conclusively” shows is that Randall came into contact with another man before her death.

And he argues that because the DNA could have been transferred during “casual contact,” the test results don’t meet the threshold for a new trial under the state’s DNA statute, which stipulates that the results must be “favorable to the petitioner.”

But Ian Dumain, one of Breest’s lawyers, said yesterday that the notion of DNA ending up beneath Randall’s fingernails through anything other than a struggle with her attacker fully contradicts what prosecutors said at Breest’s trial.

DNA testing didn’t exist at the time, but Dumain said the blood beneath Randall’s fingernails was connected to Breest after a detective noted scratch marks on his hands a few weeks after her murder. (Breest claimed the marks were from his cat.)

“You don’t get DNA underneath your fingernails . . . because male DNA is floating around in the air. This type of evidence is deposited in a particular way as a result of a violent struggle,” Dumain said. “That was the state’s argument to the jury at trial. Now there is evidence that is inconsistent to their trial theories.”

He called the explanations presented by Strelzin “just complete speculation.” And he said a judge who ruled in favor of granting Breest his first round of testing in 2000 rejected a similar contention made by prosecutors then, who argued that even if another person’s DNA was found, it wouldn’t undermine their case because of all the other ways the DNA could have ended up beneath Randall’s fingernails.

Dumain said while the DNA evidence is central to the motion for a new trial, the request also raises questions about other issues in Breest’s case, including the trustworthiness of a jailhouse informant who testified that Breest confessed to murdering Randall. Dumain also pointed to testimony that particles from Randall’s coat were found in Breest’s car, calling it “junk science” that has been proven to be unreliable.

In his motion, Strelzin raises his own set of facts, separate from DNA, that he says implicate Breest, including a witness who testified to seeing a woman fitting Randall’s description getting into a sedan driven by a “big man” and another witness who said the driver of that vehicle had a build similar to Breest’s. He said forensic science established that blood was found in Breest’s car and on his boot.

Strelzin ultimately argues, though, that a judge should never have to weigh those issues because Breest was granted the DNA testing that resulted in the request for a new trial as part of a 2008 federal settlement, not under state law that gives him recourse for a new trial.

That civil case was filed by Breest in 2007 in Concord’s district court, where he argued that his constitutional rights had been violated when he was denied another DNA test. The case was settled and Breest was allowed one more test.

Strelzin is now arguing that because the test wasn’t granted under state law, Breest doesn’t have the right to a new trial that is provided through the statute.

Dumain, though, claims Strelzin is mistaken.

He said the test showing a third person’s DNA was conducted last year after the attorney general’s office consented in February 2012 to another round of testing. He said a test was conducted following the settlement in 2008, but those results didn’t spur the motion for a new trial.

Strelzin yesterday declined to comment on the discrepancy or any of the points Dumain raised in response to his motion to dismiss. He said he would respond in court.

Strelzin also argues in that motion that Breest isn’t warranted a new trial because the statute of limitations to request one has more than lapsed. That limit, three years, is set in the state law governing requests for new trials.

Dumain, though, said he believes Breest’s request would be handled under the state’s DNA law, which does not set a statute of limitations.

A hearing on the motion to dismiss has not yet been scheduled.

(Tricia L. Nadolny can be reached at 369-3306 or tnadolny@cmonitor.com or on Twitter @tricia_nadolny.)